The execution and terms of an online auction site's user agreement containing a forum selection clause was sufficiently proved by the production of an exemplar of the agreement, coupled with testimony of a site employee describing the process by which users registered to use the site, a state appeals court ruled. The court noted that the employee's testimony established that a user was required to register and assent to the online terms in order to use the site, and the assent was required to be confirmed by the entry of a code e-mailed to the user. The court also ruled that the user's assertion that he was not aware that the agreement contained a forum selection clause was insufficient to render the clause unenforceable.
In re eBay, Inc., 2010 Tex. App. LEXIS 5340 (Tex. Ct. App. 9th Dist. July 8, 2010) Download PDF
Editor’s Note: The court in Smallwood v. NCSoft Corp., 2010 U.S. Dist. LEXIS 82484 (D. Haw. Aug. 4, 2010) similarly rejected a challenge to the authenticity of an online user agreement proffered by a video game company, where the agreement was accompanied by a declaration of in-house counsel